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Diplomatic Privileges and Immunities in the Internet Era

19 January 2010

Digitalisation impacts the following aspects of diplomatic privileges and immunities:

1. Inviolability of Hardware and Digital Assets

The immunities accorded to the mission premises are endorsed in Article 22(1) of the VCDR which States that the mission premises shall be inviolable.

Inviolability of diplomatic premises, as specified in Article 22(1) of the Vienna Convention on Diplomatic Relations (1961),  also extends to computers, printers, and other digital facilities located on the mission premises. However, it is not clear whether inviolability could be extended to digital assets which are located outside the mission on, for example, internet servers in a cloud. For the protection of this type of digital asset, the closest analogy is the protection of bank accounts, which are held outside the premises of the mission.

The Vienna Convention on Diplomatic Relations (VCDR) does not regulate the status of such bank accounts – presenting circumstances that required additional interpretation of the Convention. Decisions of national courts and international practice confirm the international customary rule that inviolability can be extended to bank accounts if they are used for activities of diplomatic missions.102 Article 25 of the Convention on Special Missions goes beyond the VCDR regulation and includes inviolability to ‘other property used in the operation of the special mission’. Digital assets can enjoy the same protection as bank accounts.

 

2. Freedom of Diplomatic Communication

One of the postulates of diplomatic law is that diplomatic missions are entitled to free communication: communication that is unmonitored, unobstructed and free from surveillance or interference. Since Article 27 of the VCDR specifies that ‘the mission may employ all appropriate means’ of communication, this should include the use of digital communication.

 

3. Use of Wireless Facilities by Diplomatic Missions

Vienna Convention on Diplomatic Relations in Article 27(1) gives diplomatic mission right to use wireless transmitters on the condition that there is the consent of the receiving State. Fast growth of wireless technology opens two major issues:

the first is related to the use of wireless facilities in diplomatic missions for the electronic surveillance of local communication in the capital of the host country, as it is reported to be done by the US, the UK, Australia and Canada in the capitals of Asian countries.

The second likely consequence is related to the rapid development of new wireless technologies which may provide diplomatic missions with new types of wireless communication. These would require the permission of host countries for their use, even if they become more like digital commodities than like the complex technical facilities they were back in the 1960s when the VCDR was drafted. Additionally, giving international telecommunication regulations priority over diplomatic law (as was done in the negotiation of Article 27(1) of the VCDR) may be used in the future by States to reduce the freedom of diplomatic communication on the basis of enforcing telecommunication standards and regulations.

 

4. Inviolability of Databases and Electronic Documents

Archives and documents, including electronic ones, enjoy the strongest protection by the VCDR, which states in Article 24 that ‘[t]he archives and documents of the mission shall be inviolable at any time and wherever they may be.’

Even in the case when a mission premises loses its diplomatic status due to a severance of diplomatic relations, the archives and documents retain their inviolability without a time limitation. Such high protection was inspired by the importance of confidentiality with regard to the work of diplomatic services.

The initial draft of Article 24, which referred only to ‘archives’, was amended by adding ‘documents’ in order to also cover less formal documents that do not form part of official archives, such as negotiating drafts, ‘non papers’ and memoranda in draft. This wide interpretation of the concept of an archive was restated by the International Law Commission in its work on the Convention on the Succession of States, where an archive is defined as ‘documentary material of whatever kind amassed and deliberately preserved by State institutions in the course of their activities’. The phrase ‘of whatever kind’ includes electronic documents and e-mail.

This summary is based on

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